DOH Publishes Emergency Regulation on Social Distancing

The July 29, 2020 issue of the New York State Register includes an emergency regulation issued by the Department of Health (DOH) entitled “Enforcement of Social Distancing Measures.” The rule is aimed at enforcing social distancing measures to control the spread of communicable diseases such as COVID-19. The regulation, which took effect July 9, 2020, will apply for the duration of the State disaster emergency declaration related to the outbreak of COVID-19.

The first section of the regulation deals with the use of face coverings. It requires any person over age two who can medically tolerate a face covering to cover their nose and mouth with a mask or face covering when:

he/she is in a public place and unable to maintain social distance;
he/she is a paying passenger of, or employee operating, a transportation carrier or other for-hire vehicle; and
he/she is present in the workplace and in direct contact with customers or members of the public or is unable to maintain social distance. Businesses must provide, at their expense, such face coverings for their employees.

Business operators and building owners, and those authorized on their behalf, must deny admittance to any person who fails to comply with face covering requirements and require the person’s removal (subject to the Americans with Disabilities Act and other relevant laws). This section also defines the types of allowable face coverings, as well as social distance.

The second section of the regulation pertains to non-essential gatherings. It precludes any non-essential gatherings of more than 10 individuals for any reason (excluding any essential businesses), subject to modi?cation by any Executive Order (EO) (current rules allow gatherings of up to 50 people). No person, business, or other entity may promote any non-essential gathering on any public property, including streets, sidewalks, parking lots, parks, playgrounds, or beaches, that would violate the 10-person limit. In addition, all non-essential gatherings that are allowed must comply with social distancing protocols and cleaning and disinfection guidelines.

The third section relates to business operations and requires that:

All businesses must utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Except as otherwise allowed by any EO, each employer is required to reduce the in-person workforce at any work locations by 100 percent. Essential businesses and entities providing essential services are exempt from these requirements and can operate in a manner needed to provide the essential services. Essential businesses and services are defined in the regulation.
All restaurants and bars must cease serving patrons food or beverages on premises, and only offer take-out or delivery services, subject to any EO relaxing this restriction. This restriction is currently eased as part of Phase Three of reopening in all regions except New York City, where indoor dining is still not permitted.
All indoor common portions of retail shopping malls with over 100,000 square feet of retail space must remain closed, subject to any EO relaxing this restriction (this restriction was eased under Phase Four of reopening). Any essential businesses located within shopping malls that have their own external entrances may remain open, provided any restaurant is limited to take-out or delivery services.

The final section relates to penalties for non-compliance. Violators of these requirements are subject to all civil and criminal penalties as provided for by law. Individuals who violate these requirements are subject to a maximum ?ne of $1,000 for each violation. For purposes of civil penalties, each day that there is a non-essential gathering or that a business operates in a manner inconsistent with the regulation will constitute a separate violation.

This emergency regulation is valid for 90 days and will expire no later than Oct. 6, 2020, unless renewed.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866